Unreported / Non-Citable
Background
Dary Duarte-Montoya, a native and citizen of Guatemala, entered the United States without inspection on February 1, 1997. In 2010 he was arrested and convicted for driving under the influence. On November 20, 2014, an immigration judge ordered him removed but granted withholding of removal to Guatemala; that order was silent as to third-country removal. He claimed to have paid taxes since 2014, maintained work authorization and long-term employment, and lived at the same residence since 2019.
On August 4, 2026, Duarte-Montoya was arrested and taken into federal immigration custody during a scheduled interview. The next day he filed a verified petition for a writ of habeas corpus under 28 U.S.C. § 2241, raising seven grounds including Fifth Amendment due-process and Immigration and Nationality Act claims, and seeking immediate release. On August 12, 2026, he was served with a Notification of Removal, and Respondents answered that he appeared entitled to request an initial bond hearing under Rodriguez Vazquez v. Bostock.
On August 13, 2026, Petitioner moved to hold the case in abeyance pending a § 1226(a) custody redetermination hearing, while Respondents noticed an intended third-country transfer to Mexico. After Petitioner sought emergency relief, the court issued an administrative stay on August 14, 2026, and denied the emergency motions as moot. Following a status conference and joint status reports, the parties said a bond hearing was scheduled for August 26, 2026; no further status reports were filed.
The Court’s Holding
The court denied the petition. It first held that Petitioner is subject to a final order of removal, so his detention is governed by 8 U.S.C. § 1231(a), not § 1226(a). Under § 1231(a), removal is mandatory within 90 days after the removal order becomes administratively final, detention during that period is mandatory, and a noncitizen not removed during that period may be detained beyond it or released under supervision. But detention may not be indefinite: under Zadvydas v. Davis, once there is no significant likelihood of removal in the reasonably foreseeable future, the noncitizen must be released.
Zadvydas treats the first six months after the relevant detention as presumptively reasonable, though that presumption may be rebutted earlier. Petitioner's removal order became administratively final on November 20, 2014, and he was detained on August 4, 2026; as of the October 13, 2026 order, only about two months had elapsed, so his detention fell within the presumptively reasonable period.
The court also emphasized that neither side properly briefed § 1231(a). Petitioner challenged only the legality of his detention, not the removal order, and focused mainly on procedural due process; Respondents relied entirely on § 1226(a). Because it was unrebutted that Petitioner is subject to a final order of removal, the court concluded that he failed to show that his current detention violates due process under Zadvydas.
Key Takeaways
- A noncitizen subject to a final order of removal is detained under 8 U.S.C. § 1231(a), not § 1226(a), even if the government previously discussed bond eligibility under § 1226(a).
- Detention after a removal order is presumptively reasonable for six months under Zadvydas, and a detainee held for only about two months has not exceeded that period.
- The six-month presumption is not an absolute bar to earlier challenges, but the petitioner still bears the burden of proving by a preponderance of the evidence that he is entitled to habeas relief.
- A petitioner who attacks only the conditions or process of detention, rather than the removal order, and who does not engage the post-removal-order statutory framework may fail to carry that burden.
- When both parties brief the wrong detention statute, the court may deny relief based on the unrebutted fact that the petitioner is subject to a final order of removal.
Why It Matters
The decision shows why the governing detention statute matters: Petitioner and Respondents both oriented their arguments around § 1226(a), but the court held that § 1231(a) controls because Petitioner has a final removal order. That mismatch left the due-process challenge without adequate support.
It also illustrates that Zadvydas's six-month presumption is a framework, not a complete shield: a petitioner may challenge detention earlier, but must still produce argument and evidence sufficient to rebut the presumption and prove entitlement to release.